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[2016] ZAGPPHC 467
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Khuduga v Passenger Rail Agency of South Africa (59370/2011) [2016] ZAGPPHC 467 (15 June 2016)
OFFICE
OF THE CHIEF JUSTICE
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION: PRETORIA
CASE
NO: 59370//2011
15
June 2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
LEHLOHONOLO
VICTOR
KHUDUGA PLAINTIFF
And
PASSENGER
RAIL AGENCY OF SOUTH
AFRICA DEFENDANT
JUDGMENT
VUKEYA
AJ
[1]
The plaintiff instituted an action for damages against the defendant
suffered as a result of personal injuries he sustained
while he was a
passenger in a train during 2011. His leg was amputated when he was
pushed out of a moving train at Kalfontein station.
[2]
The parties agreed in terms of Rule 33(4) of the Uniform Rules of
Court that the issues of quantum and merits be heard separately
and
therefore the case at hand deals only with the merits.
[3]
Mr Lehlohonolo Victor Khuduga, the plaintiff, told the court that he,
on 10/07/2011, was a passenger in a train from Kempton
Park to
Thembisa. He was standing in the third coach of the train holding on
to a steel bar inside the train and holding his groceries
in the
other hand. The doors of the train were not properly closed when it
left Kempton Park station.
[4]
The train was full and the people were standing holding on to the
steel rails while some were close to the door. There were
no empty
seats. He saw Metro rail security officials at Kempton Park before
embarking but none of them said anything about the
doors which were
not properly closed when the train moved.
[5]
When it reached Kalfontein station, the people started pushing each
other to get in and some out of the moving train. Before
the train
could stop and while it was still in motion, he was pushed out of the
train and he lost his footing and fell between
the platform and the
train. The train came to a standstill and the people nearby helped
him and placed him on the platform. He
lost consciousness at some
point though he could not recall at what stage this happened. He
could not even recall how he got to
the hospital. He was injured on
his leg and it was amputated
[6]
He explained that when he was pushed out of the train he lost his
grip on the steel rail, lost his footing and fell. He never
saw any
Metro officials after he fell and did not recall providing his
personal details to any officials at the scene. A gentleman
he
believed was from PRASA spoke to him at the hospital and he later
learned that the person was a Lawyer.
[7]
He had a monthly ticket to travel from Oakmore to Knights though he
was going to Thembisa. When shown Page 17 of Exhibit "A",
the Plaintiff denied that he was in possession of that ticket and
also denied that he was supposed to be travelling from Olifant
to
Tembisa as indicated in ticket 29642786130870.
[8]
He also denied the version that he was staff riding or that he came
through the subway between platform 3 and 4 after the conductor
had
signaled for the train to depart and attempted to embark between the
coaches causing him to fall. When it was put to him that
he did so as
an attempt to commit suicide he denied this and said he has minor
children to take care of.
[9]
The plaintiff could not exactly demonstrate how he fell as he could
only remember being pushed, losing his footing and falling.
It was
put to him that his body was larger than the distance between the
platform and the train and therefore it was impossible
for him to
have fallen in the manner he attempted to demonstrate. The plaintiff
could neither confirm nor dispute this averment
but said that he
landed underneath the train and was moved to the platform by other
commuters.
[10]
The Plaintiff's case was closed.
[11]
Dirk Johannes Albertus Leslie was the train driver on the day in
question. He approached the platform at Kalfontein and stopped
at the
normal place to allow passengers to disembark and embark from the
train. Shortly after departing he received an emergency
signal to
stop. He stopped the train, looked behind and saw people four coaches
behind him. It took about 30-40 meters to stop
the train as it was
not moving fast.
[12]
He went to inspect what was happening. When he arrived at the
platform the Plaintiff was lying there. He then reported that
someone
had been injured under the train and that some passengers may have
removed him and placed him on the platform.
[13]
The witness confirmed that he made both reports as they appear on
pages 29, 34 & 35 of Exhibit A that the plaintiff was
staff
riding, but said that he did not know that for sure, he only heard
from some commuters.
[14]
Ephraim Lesebana Mothiba, the Metro train guard, said that on
10/07/2011 he was on duty to provide safety to passengers. He
explained that he sits at the back of the coach, opens the window,
and takes out his head to observe the platform for passengers.
When
the train becomes stationery he uses a button to open the doors. When
satisfied that the movement of passengers has stopped
he blows the
whistle to alert commuters that the doors are about to close. If
there is no movement of commuters he then closes
the doors and gives
the driver a notification by pressing the ride-away button which
signals the driver to leave the platform.
He then observes the
movement of the train until the last coach leaves the platform.
[15]
The incident involving the plaintiff happened in Kalfontein on
platform 4. He did all he was supposed to do as safety precautions
before the incident happened. The train got to a standstill on
platform 4 and he opened the doors. Some commuters got in some got
out. When it was safe and there were no passengers going in and out
of the train, he blew the whistle to warn commuters that the
doors
were about to be closed. He closed the doors and gave the driver the
ride-away signal. The platform only had people who had
disembarked
from the train when he gave the driver the signal to move.
[16]
The train was already in motion when he noticed the plaintiff
emerging from the side of platform 3 and running towards platform
4.
The train had already gained speed when the man emerged from the
right hand side running towards the train. He then gave the
driver an
emergency bell signal to stop as he had noticed the man was about to
put his life in danger. Before the train could stop
the plaintiff had
already reached the train.
[17]
The plaintiff attempted to embark in between the coaches. He used the
hand rails used by technicians to separate and unhook
the
trains. When he held on to the handrails the train was in motion, he
was pulled by the train, lost his footing and fell underneath
the
train. The train came to a standstill. He then phoned the driver of
the train and informed him that a person tried to climb
in between
the coaches. The driver then called the operating unit to conduct an
investigation and to call an ambulance. He then
went to the scene and
found the plaintiff on the platform. He had already been removed from
underneath the train to the platform
by other commuters.
[18]
This witness told the court that the ticket found in possession of
the plaintiff did not permit him to go to Thembisa and therefore
he
was in the train illegally. He however conceded that if a person had
a ticket to commute from Knights to Oakmore and was found
in
Kalfontein then that person would not be an illegal commuter.
[19]
He did not complete a Railway Occurrences Report or a Liability
Report because he was on leave when statements were obtained.
[20]
Zaneen Diye Tshuma the commander, who co-ordinates with service
providers in the security line for security services, went
to the
scene as soon as the incident was reported to him. He found the
plaintiff who identified himself as Khuduga. He interviewed
him while
he was conscious and obtained his names, addresses and details of his
train ticket.
[21]
Though he is not the author of the information contained in pages 8
and 9 of Exhibit A, he is the one who provided it. He however
said
that the person who received the information from him may have made a
mistake with plaintiff's names and date of birth as
those were
incorrect. He said when he interviewed the plaintiff his leg had been
amputated, he was bleeding profusely but he was
in his sound and
sober senses.
[22]
That is, in a nutshell, the evidence upon which the case must be
decided. The onus is on the plaintiff to prove his claim on
a balance
of probabilities.
[23]
The two versions before court are mutually destructive and therefore
the court employs the guidelines as set out in
Stellenbosch
Farmers' Winerv Group
and Another v Martel et Cie and Others 2003
(1) SA (11) SCA where the following was said:
"...
to come
to a
conclusion on the disputed issues
a
court must
make findings on (a) probabilities. As to (a), the court's finding on
the credibility of
a
particular witness will depend on its
impression about the veracity of that witness. That in turn will
depend on
a
variety of subsidiary factors, not necessarily in
order of importance, such as (i)
the witness' candour and
demeanor in the witness box, (ii) his bias, latent and blatant (iii)
internal contradictions in his evidence,
(iv) external contradictions
with what was pleaded or put on his behalf or with established facts
or with his own extra curial
statements or actions,
(v)
the probability or improbability of particular aspects of his
version,
(vi)
the caliber and cogency of his
performance compared to that of
other witnesses testifying
about the same incident or the same events. As to {b), a witness'
reliability will depend, apart from
the factors mentioned under (a)
(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in
question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation
of the probability or
improbability of each party's version on each of the disputed issues.
In the light of its assessment of (a),
(b) and (c), the court will
then, as a final step, determine whether the party burdened with the
onus of proof has succeeded in
discharging it."
[24]
It is common cause that the plaintiff sustained serious injuries as a
result of which his leg was amputated and that this happened
at a
train station at Kalfontein. What is in dispute is whether this
happened as a result of the Defendant's negligence as alleged
in the
Plaintiff's particulars of claim.
[25]
The Plaintiff alleges in his particulars of claim that the sole cause
of him falling from the train was the negligence of the
train
conductor in that, amongst other factors:
a) He opened the doors of
the train which was full of passengers before it came to a
stand-still at the platform;
b) The Plaintiff was
pushed out of a moving train through the open doors by passengers who
were pushing each other for space;
c) The defendant failed
to pay due regard to the safety of the passengers;
d) The defendant failed
to prevent the accident when by exercise of due and reasonable care
he could have done so;
e) The doors were never
closed when the train took off.
[26]
The question the court has to answer is whether the circumstances
leading to the demise of the plaintiff were foreseeable and
whether
the defendant had acted negligently in not foreseeing the possibility
of harm and taking reasonable steps to prevent it.
The reasonable man
test is therefore applicable in this matter.
[27]
The court must determine if there was a duty on the defendant towards
the plaintiff and the nature of the duty. In Ngubane
v South African
Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
AD Kumleben JA held as follows:
"As regards
the requirements, it is acknowledged that reasonable steps are not
necessarily those which would ensure that foreseeable
harm of any
kind does not in any circumstances eventuate. The contributor (Prof J
C van der Walt) in Joubert (ed) The Law of South
Africa vol 8 sv
"Delict" para 43 at 78 comments
in this
regard that: "Once
it is established that a
reasonable man
would have foreseen the
possibility of harm the question arises whether he would have taken
the measures to prevent the
occurrence
of the
foreseeable harm. The answer depends on the circumstances of the
case.
There are however, four basic
considerations in each
case
which
influence the reaction of the reasonable man in
a
situation posing
a
foreseeable risk of
harm to others: (a) the degree or
extent
of the
risk created by the actor's
conduct; (b) the
gravity of the possible consequences if the risk of harm
materializes; (c) the utility of the actor's conduct;
and (d) the
burden of eliminating the risk of harm".
[28]
The Plaintiff being a single witness with regards to the incident,
made a good impression when giving evidence. He gave a clear
and
coherent version of the incident without giving any impression that
his evidence may have either been fabricated or exaggerated.
Even
when subjected to severe cross examination he stuck to his version
and did not falter. He conceded when it was necessary and
never
contradicted himself or the version in his particulars of claim.
[29]
During cross examination the plaintiff was confronted about the
information he provided to PRASA officials after the incident.
It was
alleged that he was in his right state of mind when he gave out the
information to the officials and therefore he was not
being truthful
when he told the court that he never spoke to any officials at the
scene and that he never gave them his ticket.
[30]
When looking at the manner in which the information was obtained from
the Plaintiff, the question arises as to whether such
information was
obtained properly or whether such information can be allowed to
affect the credibility of the plaintiff and the
reliability of his
evidence.
[31]
The plaintiff had just fallen from a moving train; his leg amputated
and was bleeding profusely when he was interviewed and
his ticket
allegedly obtained from him. It cannot be said that he was in a good
state of mind and that he was in his sound senses
when he gave out
the information. It cannot therefore be expected of him to recall
some of the things he said, whether they made
sense or not. In fact,
it is questionable why the defendant opted to interview the plaintiff
while he was in a state of vulnerability
and then use the information
obtained against him in the trial.
[32]
I am of the view that the discrepancies in the evidence of the
plaintiff, caused by the information received from him while
he was
in that state cannot be viewed in a serious light. Such discrepancies
do not affect the credibility of the plaintiff and
the reliability of
his evidence and they are therefore found to be immaterial.
[33]
The good qualities observed in the evidence of the plaintiff are
lacking in the evidence of the defendant. Mr Leslie, the train
driver, did not see what actually happened and how the plaintiff got
injured. He was referred to Page 34 Exhibit "A",
and Page
29 in Paragraph 4; wherein it was alleged that he had made a report
that "there was a person underneath the train".
He conceded
that he made such a report but stated that some people
may have
moved the person to the platform. What is of importance to note is
the fact that what Mr Leslie actually reported was untrue as
he did
not see the plaintiff under the train but the person was already on
the platform when he saw him.
[34]
He further stated when cross examined that it was not possible that
he may have been pushed if he fell underneath the train.
He said when
he stopped the train, he saw something wrong at the platform and when
he went to the platform the plaintiff was lying
there but says some
people may have moved him to the platform. If this is something he
did not see, why then did he report that
the person was underneath
the train if he had seen him on the platform unless his intention is
to deliberately mislead the court
into believing that the plaintiff
was responsible for his own demise.
[35]
Mr Mothiba, the train guard, alleges that he saw how the incident
happened. He states that when he saw that the plaintiff was
about to
put his life in danger, he gave the driver an emergency bell to stop
the train after he had given him a ride away signal.
The evidence of
the plaintiff that he had groceries in his other hand was not
disputed by the defendant. It makes it improbable
therefore that the
plaintiff would attempt to hold on to the handrails on the couches
while the train is in motion and this makes
the version of the
plaintiff more probable.
[36]
This witness also mentioned that when he went to the scene he found
the plaintiff on the platfonn. According to him the plaintiff
had
been removed by the commuters from underneath the train to the
platform. He was referred to page 36 of Exhibit "A"
wherein
he stated that he gave the driver a signal after the person had
fallen, he said that his recordings were not done in sequence
and
denied that he was not being truthful.
[37]
The witness was confronted about the contents of Pages 19 and 20 of
Exhibit "A' in which it was reported that the plaintiff
was
disembarking from a moving train and he said that the people who
drafted the report did not see the incident while he saw it.
[38]
This witness was the responsible person who was supposed to prepare a
Railway Occurrence Report or a Liability Report but said
that when
the incident was investigated he was on leave and could not compile
such a report. The incident occurred in July 2011
and the witness
said he did not know why the report had not been compiled up to the
date of trial in February 2016.
[39]
I am of the view that if this witness was truthful and honest about
what actually happened on the day in question; a full report
concerning the incident would have been prepared as soon as the
incident occurred. If Mr Mothiba does not know why the report has
not
been prepared, it suggests that he is not being truthful to the court
and is concealing the true state of affairs as it occurred
on
10/07/2011 thus making the version of the plaintiff more probable.
[40]
This witness's evidence contradicted that of Mr Leslie who told the
court that he received only one signal to stop the train.
According
to Mr Mathiba there were two signals, first when he noticed the
plaintiff running towards the moving train and then when
he got
injured.
[41]
The above contradiction is found to be material as it relates to the
bone of contention between the parties in this matter.
It addresses
the defence of the defendant as it shows that if there was indeed one
signal for the train to stop, then it cannot
be true that the train
guard saw the plaintiff a few meters away from the train while
attempting to stuff ride.
[42]
Mr. Tsuma, the co-coordinator between PRASA and security companies
employed by the defendant, did not see this incident but
interviewed
the plaintiff at the scene. His evidence that the plaintiff was in
his sound mind when interviewed leaves much to be
desired. After
confirming that the plaintiff had just been amputated of his leg,
bleeding profusely and in excruciating pain he
maintained that the
plaintiff was in his sound senses. Though he conceded that some of
the particulars in the report were incorrect,
he still maintained his
observation of the plaintiff during the interview.
[43]
During the interview a ticket number was obtained from the plaintiff
which the defendant alleges was found in the plaintiff
s possession.
The plaintiff has denied that he had such a ticket but insisted he
had one allowing him to travel from Knights to
Oakmore. The fact that
the plaintiff was interviewed while he was in that state did not make
a good impression to the court and
therefore the evidence of this
witness is rejected as it is found to be unreliable.
[44]
The court accepts the evidence of the plaintiff as being true and
rejects that of the defendant.
[45]
After finding that there was harm caused to the plaintiff the next
thing to deal with in this particular matter is whether
the harm was
foreseeable and whether the defendant could have foreseen the harm
and prevented its occurrence.
[46]
The court should first find if there was a legal duty on the
defendant to act in order to prevent harm and whether the defendant
acted reasonably to prevent harm. In determining the existence of a
legal duty to act Nugent JA stated as follows in the case of
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
SCA:
"When determining
whether the law should recognize the existence of
a
legal duty
in any particular circumstances what is called for is not an
intuitive reaction to
a
collection of arbitrary factors but
rather
a
balancing against one another of identifiable norms.
Where the
conduct of the state, as represented by the persons
who perform functions on its behalf, is in conflict with its
constitutional
duty to protect rights in the Bill of Rights, in my
view, the norm of accountability must necessarily assume an important
role
in determining whether a
legal duty ought to be
recognized in any particular
case".
[47]
After the existence of a legal duty has been established, the court
has to determine whether the plaintiff has proven that
the defendant
has breached such a legal duty to act in order to prevent harm. In
making this determination, the court must find
if there was
negligence on the part of the defendant.
[48]
The test to be applied is whether a reasonable person in the
defendant's position would have foreseen the possibility of harm
being caused against the plaintiff if the train doors are opened
before the train comes to a total standstill. If so, has the
defendant taken reasonable steps to prevent harm to the plaintiff?
[49]
The plaintiff's claim for damages is based on the defendant's failure
to keep the doors closed until the train came to a standstill
thereby
causing him to be thrown out of the moving train and getting injured.
He contends that the train was full and had the doors
remained closed
until the train had stopped he would not have been thrown out and
harm would not have been caused on him.
[50]
The court has accepted the version of the plaintiff and has rejected
that of the defendant that the train guard Mr Mothiba
followed all
procedures to ensure the safety of all the commuters on the day in
question. PRASA must ensure the safety of the commuters
by ensuring
that their train guards abide by the rules to close and open doors
when it is safe to do so.
[51]
PRASA being an organ of the state, the standard of reasonableness is
viewed in the light of what is contained in the Constitution
of SA
which clearly requires the protection of rights entrenched in the
Bill Of Rights. The court must therefore evaluate the steps
taken by
the defendant to prevent harm from occurring in the light of the
evidence before it.
[52]
The plaintiff testified that the train he was travelling in was full;
he stood in it and held on to the hand rail inside while
he had his
groceries in the other hand. When it came to the station at
Kalfontein the people started pushing each other outside,
as the
doors were open while the train was still moving, he was pushed out,
lost his footing and fell. He was injured by the moving
train and his
leg was amputated.
[53]
Keeping the doors of a moving train closed is an essential safety
procedure. And had the doors been properly closed and opened
when the
train came to a total halt, the plaintiff would not have sustained
any injuries that culminated in the amputation of his
leg. The court
finds therefore that the defendant was indeed negligent on the day in
question as he had failed to observe a basic
safety practice of
keeping the doors closed while the train was in motion.
[54]
I am of the view that negligence has been established.
[55]
After having established the element of wrongfulness and that of
negligence, the court has to establish one more element before
it can
find that the plaintiff has proven his claim on a balance of
probabilities. That is factual causation. The question therefore
is
whether there was a causal link between the defendant's negligence
and the plaintiff's injuries.
[56]
This means the court must determine whether the harm that ensued is
closely connected to an omission of the defendant who carried
the
duty to prevent the harm. The test is whether the harm would
nevertheless have ensued even if the omission had not occurred.
It is
probable that had the doors been closed and only opened when the
train came to a total halt, the plaintiff would not have
been pushed
out and injured himself.
[57]
The fact that the plaintiff was pushed out of the defendant's moving
train whose doors were left open reinforces the legal
connection
between the defendant's failure to take preventative measures and the
amputation of the plaintiff's leg.
[58]
Therefore the court finds that the defendant's conduct attracts
liability because the defendant has a legal duty to secure
commuters
through its operating procedures.
[59]
I therefore find that the defendant was negligent in not ensuring the
safety of its commuters on the day in question by making
sure that
the doors were closed at all times while the train was in motion and
opening them when it came to a total stand still.
[60]
The following order is made:
a) The defendant is
liable for 100% of the plaintiff's proven damages;
b) The defendant is
liable for the plaintiff's costs relating to the merits of the
action; and
c) The question of
quantum is postponed sine die.
____________________
VUKEYA
L D
ACTING
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION PRETORIA
HEARD
ON:
DELIVERED
ON:
COUNSEL
FOR PLAINTIFF:ADV
ATTORNEYS
FOR PLAINTIFF:
COUNSEL
FOR DEFENDANT: ADV
ATTORNEYS
FOR DEFENDANT: